U.S. v. Murphy
| Decision Date | 07 August 2000 |
| Docket Number | Civ. No. 99-2063 (DSD).,Crim. No. 4-95-103(8)(DSD/FLN). |
| Citation | 109 F.Supp.2d 1059 |
| Parties | UNITED STATES of America, Plaintiff, v. Deshaun Raffles MURPHY, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Henry J. Shea, Assistant U.S. Attorney, Minneapolis, MN, for plaintiff.
Deshaun R. Murphy, Pekin, IL, pro se.
This matter is before the court on defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 689]. Based on a review of the file and record, defendant's motion is granted in part and denied in part.
Defendant Deshaun Raffles Murphy was convicted by a jury on June 21, 1996 of: conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 (Count I); use of a minor to assist in a conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and 861(a)(1) (Count II); aiding and abetting the possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2 (Count III); and aiding and abetting the use or carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 2 and 924(c) (Count IV). He was sentenced on January 10, 1997, to a term of 300 months imprisonment on Counts I, II and III, a consecutive term of 60 months imprisonment on Count IV and a term of supervised release of ten years. On appeal, the Eighth Circuit Court of Appeals affirmed. United States v. Davis, 154 F.3d 772 (8th Cir.1998). The Supreme Court denied defendant's petition for writ of certiorari on February 22, 1999, Davis v. United States, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999), and this section 2255 motion for collateral relief followed.
Collateral relief is available to a federal prisoner to challenge the imposition or length of sentence on four grounds: (1) "the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "the court was without jurisdiction to impose such sentence"; (3) "the sentence was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255 (1994). Despite this apparently broad language, violations of federal law are only cognizable if they involve a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
Defendant asserts four claims in his section 2255 motion. First, he alleges the government did not treat the drug type or quantity as elements of the conspiracy, in violation of his Fifth Amendment right to due process and Sixth Amendment right to a jury trial. Second, he contends his counsel was ineffective in failing to object to a sentencing enhancement for "crack cocaine" where the type of cocaine was not proven by a preponderance of the evidence, in violation of his Sixth Amendment right to trial counsel. Third, defendant asserts that the court incorrectly calculated the quantity of drug attributable to defendant, in violation of his Fifth Amendment right to due process. Fourth, defendant contends that the court improperly applied a supervisory role enhancement under U.S.S.G. § 3B1.1(c), in violation of his Fifth Amendment right to due process.
Defendant alleges that the government violated his Fifth and Sixth Amendment rights by using drug type and quantity to increase his statutory maximum penalty even though the jury made no specific finding as to the type or quantity of drug involved in the conspiracy. Specifically, defendant argues that absent such a jury finding he should have been sentenced under 21 U.S.C. § 841(b)(1)(C), the "catch-all" penalty provision for drug crimes that with one exception contains no reference to specific drug type or quantity. An individual sentenced under section 841(b)(1)(C) is not subject to a mandatory minimum sentence, and faces a maximum term of imprisonment of twenty years and a supervised release term of at least three years.
Instead of sentencing defendant under this provision, the court applied the harsher penalties of 21 U.S.C. § 841(b)(1)(A) which provide in relevant part that where the offense involves five grams or more of cocaine base, the defendant is subject to a 10-year minimum term of imprisonment and maximum lifetime term of imprisonment and at least five years of supervised release. As part of its determination of relevant conduct, the court held defendant responsible for 800 grams of crack cocaine and sentenced defendant to a 300-month term of imprisonment on Counts I, II and III and a ten-year term of supervised release. Defendant asserts that under the Supreme Court's ruling in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), this sentence is unconstitutional.
In Jones, the Court addressed the question of whether the penalty enhancement section of a multipart federal statute (the federal carjacking statute) defined a separate crime or was merely a penalty provision.1 The sentencing judge viewed the provision in question as a sentencing factor and accordingly, he enhanced defendant's sentence using facts that had not been submitted to the jury for a determination. On certiorari review, the Court reversed and remanded, concluding that each portion of the statute, including the provision setting forth the sentencing enhancement factor, defined a separate offense. 526 U.S. at 252, 119 S.Ct. 1215.
The Court explicitly stated in Jones that its decision did not announce a new principle of constitutional law, but "merely interpret[ed] a particular federal statute in light of a set of constitutional concerns that have emerged" in prior decisions. Id. at 251 n. 11, 119 S.Ct. 1215. Nevertheless, the Court broached the broader question of whether the Fifth and Sixth Amendments allow "judicial factfinding by a preponderance [to] support the application of a provision that increases the potential severity of the penalty for a variant of a given crime." Id. at 242, 119 S.Ct. 1215. In footnoted dictum, the Court stated:
[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior convictions) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
Id. at 243 n. 6, 119 S.Ct. 1215.
Defendant asserts that this footnoted language compels correction of his sentence. The government correctly responds that the Court did not articulate a new principle of constitutional law in Jones and argues that even if it had articulated a new rule, the rule could not be retroactively applied to defendant's case. However, in the recent case Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court reexamined its prior decisions in this area and confirmed as a rule the principle first expressed in Jones: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, ___ U.S. at ___ - ___, 120 S.Ct. at 2362-63.
In a subsequent appellate decision, United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000), the Eighth Circuit Court of Appeals concluded that "[i]n Apprendi, the Supreme Court made it clear that the principle discussed in Jones is a rule of constitutional law." Id. at 931. Moreover, as the Aguayo-Delgado decision confirms, the Court's ruling in Apprendi means that in any drug case where the defendant is subject to penalties in excess of those prescribed by 21 U.S.C. § 841(b)(1)(C), the government must charge drug quantity and prove that fact to the jury beyond a reasonable doubt. Id. at 932; see also Apprendi, ___ U.S. at ___ n. 21, 120 S.Ct. at 2366 n. 21 ().
The applicability of Apprendi to drug cases raises the question of whether this court must retroactively apply the new rule to defendant's case. In general, new constitutional rules of criminal procedure apply retroactively only to cases which are on direct state or federal appeal at the time the rule is announced. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). A new rule is not to be applied retroactively on collateral review unless the rule falls within one of two narrow exceptions: (1) the new rule places certain kinds of primary conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) the rule requires the observance of "those procedures that ... are `implicit in the concept of ordered liberty.'" Teague v. Lane, 489 U.S. 288, 305-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (citations omitted). Retroactivity under Teague is a "threshold matter" which must be addressed "before considering the merits of [a] claim." Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).2
The first exception to the general rule prohibiting retroactivity applies only to rules that decriminalize a class of conduct or prohibit a certain category of punishment for a class of defendants because of their status or offense. See Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). The exception is inapplicable here. However, the Apprendi decision does implicate the second exception, which applies to those "watershed rules of criminal procedure" which "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding" and "without which the likelihood of an accurate conviction is seriously diminished."...
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